## Facts

- Kelly Curry, an inmate in the custody of the Florida Department of Corrections (DOC), was injured on May 22, 1992 while working at the Levy Forestry Camp.
- Curry first hired attorney David Shenkman to pursue a personal-injury claim against DOC (and also asserted claims against Levy County).
- Florida Statutes § 768.28(6)(a) requires presuit written notice of a tort claim to be presented to both (1) the state agency involved and (2) the Department of Insurance (DOI) before filing suit.
- Shenkman sent a letter to DOC stating it served as notice under § 768.28 and asking for a prompt response rather than waiting the full six-month period.
- DOC forwarded Shenkman’s notice letter to DOI.
- DOI wrote Shenkman acknowledging receipt of the “letters of notice,” stating it was reviewing and evaluating the incident, and later requested additional information consistent with § 768.28(6)(c)–(d). Shenkman responded to DOI’s information requests but did not separately send a new written notice directly to DOI.
- Curry later discharged Shenkman and hired attorneys Jeff M. Brown and Kenneth J. Ronan and their firm, Lavalle, Brown, Ronan & Soff, P.A. (LBRS). Brown did not serve a new written notice of Curry’s claim on either DOC or DOI, and later terminated the attorney-client relationship.
- Curry then filed (1) a negligence suit against DOC and (2) a malpractice suit against Brown and LBRS, alleging Brown’s failure to meet § 768.28 notice requirements prevented her from pursuing the DOC claim. The malpractice suit was stayed pending the outcome of the negligence action.
- Brown, Ronan, and LBRS were allowed to intervene in Curry’s negligence suit and filed an intervenor complaint asserting that the communications with DOI reflected waiver of the DOI notice requirement.
- The trial court granted DOC’s motion to dismiss Curry’s complaint with prejudice for failure to satisfy § 768.28(6)(a). Curry did not appeal, but Brown, Ronan, and LBRS appealed due to the dismissal’s potential effect on the stayed malpractice case.

## Issues

1. Whether the trial court abused its discretion by dismissing Curry’s tort action against DOC with prejudice, without permitting an amendment to plead that DOC/DOI conduct waived the § 768.28(6)(a) notice requirement.
2. Whether intervening former counsel had a sufficient interest to appeal the dismissal of Curry’s negligence suit when the ruling could affect the stayed malpractice litigation.

## Decision

- The First District Court of Appeal reversed the with-prejudice dismissal and remanded.
- The court held it was an abuse of discretion to dismiss the complaint without leave to amend allegations concerning DOC’s possible waiver of the presuit notice requirement.
- The court did not hold that waiver was established on the existing pleadings; it held only that the waiver theory was viable enough to allow amendment and further proceedings.

## Legal Principles

- Section 768.28(6)(a) requires presuit written notice to both the responsible agency and DOI as a prerequisite to suing the State or its agencies in tort.
- A failure to satisfy a condition precedent ordinarily supports dismissal, but dismissal with prejudice is improper where the defect may be cured by amendment.
- Government conduct—such as forwarding a notice to DOI, acknowledging receipt as “notice,” undertaking investigation, and requesting statutory information—may support a pleaded theory that the State waived strict insistence on formal notice compliance.
- Trial courts should allow amendment when additional factual allegations could state a legally sufficient basis to avoid dismissal, including a waiver theory tied to the State’s actions.
- Intervenors may appeal an order that materially affects their interests, including where a dismissal in the underlying tort action may have consequences in related litigation (such as a stayed malpractice case).

## Conclusion

Brown v. State, Department of Corrections holds that when the State’s own handling of a claim (including DOI acknowledgment and investigation after DOC forwards the notice) could support a waiver theory under § 768.28(6)(a), it is an abuse of discretion to dismiss the tort complaint with prejudice at the pleading stage without allowing an amendment to plead waiver more fully, and intervening former counsel may appeal because the dismissal can affect related malpractice proceedings.


Brown v. State, Department of Corrections, 701 So. 2d 1211 (1997)